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State of New Jersey v. Jose Rivera

July 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
JOSE RIVERA,
DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-02-0457.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 24, 2011

Before Judges Carchman and Graves.

Following an expansive but unsuccessful motion to suppress and a jury trial, defendant Jose Rivera was convicted*fn1 of first- degree knowing and purposeful murder of his wife, Amalia Rojas, N.J.S.A. 2C:11-3(a)(1),(2) and third-degree hindering apprehension, N.J.S.A. 2C:29-3. On November 21, 2002, the trial judge sentenced defendant to a term of life imprisonment with thirty-years of parole ineligibility as well as a consecutive five-year term of imprisonment. Defendant appealed, and we affirmed the conviction but remanded for resentencing on the hindering charge in light of State v. Natale, 184 N.J. 458, 466 (2005); State v. Rivera, No. A-0823-03 (App. Div. August 23, 2007). The Supreme Court denied certification. State v. Rivera, 193 N.J. 221 (2007). On February 5, 2008, following a hearing on the remand, the judge imposed the same sentence.

In the interim and prior to resentencing, on January 17, 2008, defendant filed a pro se petition for post-conviction relief (PCR). Rather than dismiss the PCR as out-of-time, see R. 3:22-12, the PCR judge substantively addressed the merits and denied the petition. Defendant appeals, and we affirm. The State cross-appeals, and we dismiss the cross-appeal.

In our opinion on the direct appeal, we set forth in detail the factual underpinnings of the offense together with an extensive discussion of the facts related to defendant's confession. We see no need to repeat these facts and incorporate them by reference. Rivera, supra, No. A-0823-03 (slip op. at 2-10).

To place this appeal in context, defendant was charged with murdering his wife by strangling her behind a warehouse in Lyndhurst after a domestic dispute in their home in Astoria, Queens. After apprehension, defendant gave a twenty-four page statement detailing how he had killed his wife. Further police investigation, including the execution of a search warrant at defendant's home, revealed evidence that corroborated defendant's confession.

The motion to suppress consumed five days. Defendant did not testify at the hearing.

On his direct appeal, defendant argued:

POINT I

THE COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER.

POINT II

THE PROSECUTOR'S MISSTATEMENT IN HIS SUMMATION OF THE LAW ON PASSION/PROVOCATION DEPRIVED DEFENDANT OF A FAIR CONSIDERATION OF THAT OPTION BY THE JURY, REQUIRING REVERSAL OF HIS MURDER CONVICTION. (Not Raised Below.)

POINT III

THE AGGREGATE LIFE-PLUS-FIVE YEAR TERM IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE RELEVANT CIRCUMSTANCES.

In his PCR, he asserted:

I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

II. DEFENDANT'S RIGHTS UNDER ARTICLE

36 OF THE VIENNA CONVENTION ON CONSULAR RELATIONS W[ERE] WRONGFULLY DENIED.

III. THE DEFENDANT WAS DEPRIVED [OF] HIS CONSTITUTIONAL RIGHT TO ...


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